Norbridge Management Ltd v. Lienaux, 2012 NSSC 318

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Norbridge Management Ltd v. Lienaux , 2012 NSSC 318 Date: 20120905 Docket: 381120 Registry: Halifax Between: Norbridge Management Limited Applicant v. Charles D. Lienaux and Karen Lynne Turner-Lienaux Respondents __________________________________________________________________ DECISION __________________________________________________________________ Judge: The Honourable Justice Cindy A. Bourgeois Heard: July 24, 2012, in Halifax, Nova Scotia Counsel: Alan V. Parish, Q.C., Jason Cooke, for the Applicant, Charles D.

Lienaux, self represented, Karen Lynne Turner- Lienaux, not appearing and not represented by counsel. By the Court: History of the Proceedings [ 1 ] By Notice of Application in Chambers dated February 20, 2012, Norbridge Management Limited ( “ Norbridge ” ), brought an application “ for an order for a summons calling upon Charles D. Lienaux and Karen Turner-Lienaux to show cause why a writ of

possession should not be issued to put Norbridge Management Limited in possession of the lands located at 332 Purcell ’ s Cove Road, Halifax, Nova Scotia, PID Nos. 00633503, 41318585, and 00271015 ” . The Applicant relies upon

Section 18 of the Sale of Land Under Execution Act , R.S.N.S. 1989, c. 409. A Notice of Contest was filed by Mr. Lienaux on February 28, 2012, in which he sought extensive relief. Ms. Turner-Lienaux has not participated in the proceedings. [ 2 ] On March 26, 2012, Charles D. Lienaux brought a motion seeking an order continuing the above Application in Chambers, as an Application in Court, pursuant to Civil Procedure Rule 5.17(2). [ 3 ] On May 7, 2012, Norbridge filed a Notice of Motion seeking, pursuant to Civil Procedure Rules 39.04 and 39.05 to have a number of paragraphs contained in an Affidavit of Charles D.

Lienaux, affirmed March 26, 2012, struck. [ 4 ] The above three motions were heard by Muise, J. on May 15 and 16, 2012. By Order issued May 31, 2012, Mr. Lienaux ’ s Application to convert the matter to an Application in Court was dismissed; various provisions of the Affidavit of Charles D. Lienaux filed March 26, 2012 were struck out; two provisions contained in an Affidavit sworn by Tammy Reid on February 20, 2012 were revised; and relating to the writ of possession, “ a summons requiring the Respondents, Charles D.

Lienaux and Karen Lynne Turner- Lienaux to attend before This Honourable Court to show cause why a writ of possession in favour of Norbridge Management should not issue is hereby issued in the form attached as

Schedule “ A ” . Facts established from the Evidence [ 5 ] The Respondents, Charles D. Lienaux and Karen Turner-Lienaux, are spouses, having been married on October 19, 1974. [ 6 ] The Respondents have resided together, as spouses, at 332 Purcell ’ s Cove Road, Halifax ( “ the property ” ), since receiving a Warranty deed for same, dated May 31, 1989. Said deed conveyed to the Respondents the property as joint tenants. [ 7 ] On April 27, 1992, the Respondents entered into a Marriage Contract, which among others, contained the following provision: 4.

Until they retire from their respective positions of employment or reach statutory retirement age title to the Property shall be registered solely in the name of the Wife who shall hold an undivided one-half interest in the Property in trust for the Husband. [ 8 ] The Marriage Contract was registered at the Registry of Deeds for the County of Halifax on July 14, 2011. [ 9 ] On April 27, 1992, Mr.

Lienaux executed a Warranty deed from himself to Karen Turner-Lienaux, conveying his legal interest in the property, it being registered at the Halifax County Registry of Deeds on the same day. [ 10 ] On August 4, 2004, a Certificate of Judgment in the amount of $360,532.67 was recorded at the Registry of Deeds, with one of the named judgment debtors being Karen Turner-Lienaux. [ 11 ] On February 15, 2010, Ms. Turner-Lienaux executed a deed to the property to herself and Mr. Lienaux as joint tenants, with Mr. Lienaux also executing the document as “ Releasor ” .

The deed was recorded at the Registry of Deeds the following day, and contained the following recital: AND WHEREAS to better provide for the succession of ownership of the said property and to better provide for tax benefits accruing to the

parties upon the death of either of the parties hereto the parties have agreed that the property should be held in both of their names as joint tenants . [ 12 ] On October 8, 2010, Karen Turner-Lienaux made an Assignment in Bankruptcy. On the same date, Ms. Turner-Lienaux executed a Statement of Affairs outlining her assets, including noting “ matrimonial home (1/2 interest) 332 Purcell ’ s Cove Road, Halifax, NS (Encumb.) ” . [ 13 ] At this juncture, I will pause to confirm that all of the above noted facts have been taken from Mr.

Lienaux ’ s redacted Affidavit affirmed March 26, 2012. [ 14 ] Based upon the decision of Moir, J. in Smith ’ s Field Manor Development Limited v.

Campbell , 2010 NSSC 63 , an Execution Order in favour of Wesley Campbell as against Karen Turner-Lienaux was issued by the Prothonotary, in the amount of $505,870.10. [ 15 ] In reliance upon the above noted Execution Order, the judgment creditor, Campbell sought, pursuant to the provisions of the Sale of Land Under Execution Act , supra , to sell Charles Lienaux ’ s encumbered interest in the property. [ 16 ] On May 11, 2011 a “ Notice of Public Auction ” was published in the Chronicle Herald. A copy of the “ Notice of Public Auction ” was provided to both Respondents.

The Notice provided that the sale was scheduled for June 15, 2011. [ 17 ] The Notice described the property being sold, as follows: PROPERTY: ALL that one-half interest of Charles D. Lienaux in certain parcels of land and land covered with water known as 332 Purcell ’ s Cove Road, Halifax County, Nova Scotia being the land, right of way and water lot more fully described in a deed recorded at the Halifax County Registry of deeds in Book 5220, Page 360, and legally described as PID 00271015, 00633503 and 41318585. [ 18 ] On May 24, 2011, Charles D.

Lienaux, and several others identified as creditors of Karen Turner-Lienaux, filed a Notice of Motion, seeking various items of relief, most notably an order to cancel the Sheriff ’ s sale scheduled for June 15, 2011 on the grounds that: (

a) The judgment against Karen L. Turner-Lienaux dated March 7, 2002, in 1993 Halifax proceeding No. 102390 (being the consolidation of proceeding numbers 93-5807 and 93-5909), sought to be executed upon by the Sheriff, was stayed on October 8, 2010, pursuant to s. 69(3) of the Bankruptcy and Insolvency Act , RSC 1985, c B-3; (

b) The execution order against Karen L. Turner-Lienaux dated February 24, 2010, in 1993 Halifax proceeding No. 102390 (being the consolidation of proceeding numbers 93-5807 and 93-5909), sought to be executed upon by the Sheriff, was stayed on October 8, 2010 pursuant to s 69(3) of the Bankruptcy and Insolvency Act , RSC 1985, c B-3;

(

c) The deed in book 5220 at page 360, at the Halifax County Land Registry Office, pursuant to which the Sheriff purports to sell lands at public auction, does not convey to Charles D. Lienaux any exigible interest in the lands sought to be executed against; (

d) A hearing to determine the right of Wesley G. Campbell to execute against Charles D. Lienaux in 2002 Halifax proceeding No. 101803 (formerly Hfx. No. 93-5567), has been set down to be heard by case management Justice Kevin Coady commencing on November 7, 2011. [ 19 ] On June 7, 2011 the above motion was heard by Warner, J., who declined to cancel the sale scheduled for June 15, 2011. By Notice of Application for Leave to Appeal and Notice of Appeal (Interlocutory) filed July 18, 2011, Mr.

Lienaux sought to appeal Justice Warner ’ s decision, and among other things, sought “ an order of the Court setting aside the Sheriff ’ s sale by public auction of lands at 332 Purcell ’ s Cove Road in the City of Halifax, held on June 15, 2011 ” . [ 20 ] That Appeal was subsequently dismissed on October 25, 2011, due to Mr. Lienaux ’ s failure to post security for costs, as had been previously ordered by the Court of Appeal. [ 21 ] As alluded to above, the Sheriff Sale proceeded, as scheduled.

Norbridge was the successful bidder, and by Sheriff ’ s deed dated June 21, 2011, and subsequently recorded at the Registry of Deeds, was conveyed “ all the estate, right, title, interest, claim, property and demand of Charles D. Lienaux in and to the lands more particularly described in

schedule “ A ” hereto . ” The Sheriff deed further contained the following recitals: WHEREAS pursuant to a deed dated the 15 th day of February, 2010 Karen L. Turner-Lienaux conveyed a one half interest in the property described herein to Charles D. Lienaux which deed was recorded at the Registry of Deeds at Halifax on February 16, 2010 as document number 95328135; WHEREAS pursuant to the provisions of the Sale of Land Under Execution Act and an execution order issued by this Honourable Court on the aforesaid judgment, the Sheriff for the County of Halifax sold all that one-half interest of Charles D.

Lienaux in certain parcels of land and land covered with water known as 332 Purcell ’ s Cove Road, Halifax County, Nova Scotia being the land, right of way and water lot more fully described in a deed recorded at the Halifax County Registry of deeds in Book 5520, Page 360, and legally described as PID 00271015, 00633503 and 41318585, to Norbridge Management Limited, it being the highest and best bidder at the sale. [ 22 ] On November 18, 2011 an Order of Justice Coady was issued, relating to the interest in the property which Ms. Turner-Lienaux had assigned in bankruptcy.

The operative provisions of that Order provides: 1. The Trustee shall accept the offer from Norbridge Management Limited to purchase the interest in the lands at 332 Purcell ’ s Cove Road held by the Estate in Bankruptcy of Karen Turner-Lienaux for $25,000.00, such sale to be completed within thirty (30) days of the date of this Order; and 2. Pursuant to Section 120(1) of the Bankruptcy and Insolvency Act this acceptance is confirmed despite any interest the inspector, Wesley G.

Campbell, may have in the purchaser, Norbridge Management Limited . [ 23 ] By deed dated December 13, 2011, and recorded at the Registry of Deeds on December 16, 2011, Green Hunt Wedlake Inc., Trustee in Bankruptcy of the Estate of Karen Lynne Turner-Lienaux, Bankrupt, conveyed to Norbridge, all the “ interest of the bankrupt ” in the property. [ 24 ] Both parties have brought to the Court ’ s attention, and rely upon in their respective submissions, the decision of Rosinski, J. in Lienaux v. Purcell , 2012 NSSC 38 . As is apparent from reviewing that decision, that matter involved Mr.

Lienaux filing a Notice of Application in Chambers, dated October 20, 2011 in which he sought: (

i) A declaratory judgment of the Court pursuant to Rule 38.07(5) ruling that the Sheriff ’ s Deed recorded at the Halifax County Land Registration Office on June 30, 2011, as document #98618730 is void and of no lawful force or effect upon the Applicant ’ s legal and/or beneficial title to the lands purported to be conveyed thereby; and

(ii) An order of the Court directing the Respondent to cause to be registered at the Halifax County Land Registration Office all documents required thereby to show that the said Sheriff ’ s Deed is void and a nullity and requesting that the registered interests in the parcel register for the said lands of the Applicant be changed to show that the Applicant is one of the registered owners of the Applicant ’ s land. [ 25 ] The above relief was sought by Mr. Lienaux based upon the following grounds: (

i) The Respondent executed against lands of the Applicant to recover a judgment (the “ Campbell Judgment ” ) which is not against the Applicant contrary to Civil Procedure Rule 79.07 and s. 4 of the Sale of Land Under Execution Act ; (ii) The Respondent executed against lands of the Applicant after the Campbell Judgment was stayed contrary to s. 69(3) of the Bankruptcy and Insolvency Act; (iii) The Respondent executed against lands of the Applicant under the authority of an execution order (the “ Campbell Execution Order ” ) which is not against the Applicant contrary to Civil Procedure Rule 79.07 and contrary to s. 4 of the Sale of Land Under Execution Act ; (iv) The Respondent executed against lands of the Applicant after the Campbell Execution Order was stayed contrary to s. 69(3) of the Bankruptcy and Insolvency Act ; (

v) The Respondent executed against lands of the Applicant which were never beneficially owned by the judgment debtor named in the Campbell Judgment or in the Campbell Execution Order, contrary to s. 13 of the Sale of Land Under Execution Act and the common law; (vi) The Respondent proceeded with a sale of lands of the Applicant contrary to s. 13 of the Sale of Land Under Execution Act and contrary to the common law after receiving written notice from the Applicant on two occasions that: (

a) the Applicant was at all times material hereto the legal and/or beneficial owner of the lands being executed against, and (

b) the Applicant did not authorize the sale of the Applicant ’ s interests in the lands; (vii) The Respondent neglected to apply to the Court pursuant to Rules 76.01 and 76.02 for a ruling determining who was the legal and/or beneficial owner of the lands being executed against after receiving written notice from the Applicant on two occasions that: (

a) the Applicant was at all times material hereto the legal and/or beneficial owner of the lands being executed against, and (

b) the Applicant did not authorize the sale of the Applicant ’ s interests in the lands; (viii) The Respondent conveyed the Applicant ’ s lands to a purchaser whom the Respondent knew had actual notice that the Applicant is the legal and/or beneficial owner of interests in the lands which were being executed against; (ix) The Respondent conveyed the Applicant ’ s lands to a purchaser who had actual notice that: (

a) the Applicant was at all times material hereto the legal and/or beneficial owner of the lands being executed against, and (

b) the Applicant did not authorize the sale of the Applicant ’ s lands; which purchase and sale constitutes fraud by the purchaser within the meaning of s. 4(4) of the Land Registration Act. [ 26 ] The above Application was contested by the Attorney General, on behalf of Sheriff Purcell, and a hearing was held January 12, 2012. In his subsequent written decision, Justice Rosinski dismissed the Application brought by Mr. Lienaux, finding the issues had been previously addressed by Justice Warner and were thus res judicata and an abuse of process. Position of the Parties

[ 27 ] The Applicant, Norbridge, asserts that by virtue of the Sheriff ’ s deed obtained on June 21, 2011, and the Trustee ’ s deed obtained on December 13, 2011, it is the owner of the two one-half undivided interests of Charles D. Lienaux and Karen Turner- Lienaux respectively. It asserts that neither Respondent have any residual interest in the property, and are unable to “ show cause ” why they should be permitted to remain in possession. Norbridge further asserts that the arguments being advanced by Mr.

Lienaux in the show cause hearing are matters which have been previously raised in prior related proceedings and should be found to be res judicata , or in the alternative, an abuse of process. Further, it is submitted that Mr. Lienaux ’ s allegations of fraud relating to the registration of the property by Mr. Parish or others at his law firm, are based upon Mr. Lienaux ’ s inaccurate view of his continued legal interest in the property, and a misconstrued

interpretation of the decisions of Warner, J. and Rosinski, J. [ 28 ] Ms. Turner-Lienaux did not appear, or file material in relation to the application before the Court. Mr. Lienaux filed substantial materials, including briefs and two affidavits, setting out his position. He asserts that he continues to hold and is entitled to, an undivided one-half fee simple interest in the property, which he references in his submissions as “ the Lienaux Unencumbered Interest ” . As such, this should be an effective bar from the Court issuing the order of possession sought by Norbridge.

He seeks not only a dismissal of the application, but extensive relief which would in his view, rectify the land title fraud perpetrated in relation to his rightful interest in the property. [ 29 ] Mr. Lienaux ’ s argument as to the impact of various conveyances and actions is nicely summarized at paragraph 14 of his written submissions of June 15, 2012, as follows: (

i) On April 27, 1992 I became the owner of the Lienaux Unencumbered Interest which has never been subject to the Campbell Judgment; (ii) On August 4, 2004 Campbell recorded the Campbell Judgment which attached to the Turner Encumbered Interest; (iii) That on February 15, 2010 my wife signed the 2010 Deed which conveyed title of the Property from her name alone into our names as joint tenants; (iv) That on October 8, 2010 my wife made the Assignment; (

v) That the Assignment severed the joint tenancy conveyed by the 2010 Deed into two one-quarter tenant in common interests; (vi) That by the Assignment one of the one-quarter tenant in common interests passed to the bankruptcy trustee released from the Campbell Judgment; (vii) That by the Assignment the remainder of the Turner Encumbered Interest passed to me subject to the Campbell Judgment; (viii) That in May 2011 Parish directed the Sheriff to sell the Turner Encumbered Interest by public auction pursuant to the Act to recover the Campbell Judgment; (ix) That on June 7, 2011 Justice Gregory Warner ruled that by the 2010 Deed my wife conveyed to me the Turner Encumbered Interest which was subject to the Campbell Judgment and therefore subject to execution pursuant to the Act; (

x) That, on June 15, 2011, pursuant to an execution order against my wife, and Justice Warner ’ s ruling, the Sheriff auctioned to Norbridge the remainder of the Turner Encumbered Interest that remained in my name after the Assignment; (xi) That on June 21, 2011, Parish delivered to the Sheriff the Sheriff ’ s Deed which switched the Lienaux Unencumbered Interest for the Turner Encumbered Interest sold to Norbridge at the Sheriff ’ s Sale; (xii) That on June 30, 2011 Parish caused the Sheriff ’ s Deed claimed under in this Application to be fraudulently registered in the Land

Registry as conveying to Norbridge the Lienaux Unencumbered Interest instead of conveying to Norbridge the Turner Encumbered Interest; (xiii) That Justice Peter Rosinski reviewed Justice Warner ’ s decision and confirmed that the Sheriff auctioned to Norbridge the Turner Encumbered Interest at the Sheriff ’ s Sale; (xiv)That Parish ’ s Sheriff ’ s Sale Claim that the Sheriff sold to Norbridge my Lienaux Unencumbered Interest is res judicata and a collateral attack on the decisions of Justices Warner and Rosinski; (xv) That the Sheriff ’ s Deed claimed under violates the requirement of the Act and is therefore void according to law; (xvi) That Norbridge ’ s fraudulent registration of the Sheriff ’ s Deed as proof of ownership of the Lienaux Unencumbered Interest is void against me, the lawful owner of the Lienaux Unencumbered Interest that Norbridge claims in this Application; and (xvii) Since Norbridge has never obtained from the Sheriff a lawful deed of land sold under execution Norbridge has no legal right to enforce s. 18 of the Act to obtain a writ of possession to require me to vacate the Property. [ 30 ] Mr.

Lienaux submits he still holds an undivided one-half interest in the property, which was created by virtue of the April 1992 Marriage Contract between himself and his wife. As noted above, Ms. Turner-Lienaux subsequently executed a deed on February 15, 2010 to herself and Mr. Lienaux as joint tenants. Mr. Lienaux provided an explanation as to his belief regarding the effect of that deed in his June 15, 2012 Supplementary affidavit: 5.

My understanding of the 2010 Deed was that it did not immediately convey any property interest to me but that if my wife died I would inherit the Proerty subject to the Campbell Judgment. 6. My understanding of the effect of the 2010 Deed was based upon the following statement in The Law of Real Property , 1984, Megarry and Wade, 5 th Edn., Stevens & Sons Limited: 1. The right of survivorship . This is, above all others, the distinguishing feature of a joint tenancy.

On the death of one joint tenant, his interest in the land passes to the other joint tenants by the right of survivorship . . . and this process continues until there is but one survivor, who then holds the land as sole owner . . . each joint tenant holds nothing by himself . . . a joint tenant may become entitled to nothing or all, according to whether or not he is the last survivor . . . [Bold emphasis added]. [ 31 ] Mr. Lienaux now asserts, that the February 2010 deed actually conveyed Ms.

Turner-Lienaux ’ s one-half undivided interest in the property to him and her as joint tenants, which would have been subject to the Campbell judgment previously recorded in 2004. He asserts that the deed did not convey his one-half interest in the property being beneficially held by Ms. Turner-Lienaux pursuant to the Marriage agreement, which was yet to be recorded at that point in time. Mr. Lienaux relies upon the decisions of Warner, J. and subsequently that of Rosinski, J. as determining that the February 2010 deed did not convey to him the interest beneficially held by Ms.

Turner- Lienaux pursuant to the Marriage contract, but rather her own encumbered interest. [ 32 ] Mr. Lienaux acknowledges that he held a one-quarter interest (half of his wife ’ s original interest) which was subject to the Campbell judgment, and accordingly subject to be sold pursuant to the Sale of Land Under Execution Act . He argues however, that following the Sheriff sale, Mr.

Parish, or members of his firm, fraudulently caused the Sheriff deed to be registered in such a manner as to improperly reflect that his entire interest, most notably his one-half interest being held pursuant to the provisions of the Marriage contract, had been conveyed. Legal Authority

[ 33 ] This proceeding is brought pursuant to s. 18 of the Sale of Land Under Execution Act , supra . That

section provides: 18 Any person, who has obtained from the sheriff a deed of land sold under execution, may apply to a judge of the court out of which the execution issued for a summons calling upon the judgment debtor, and upon every person in possession of such land, or any portion thereof, deriving title by, through or under the judgment debtor, subsequently to the registry of the judgment, to show cause why a writ of possession should not issue to put the purchaser in possession.

Section 20 further provides: 20 Upon the return of the summons, the judge may receive evidence, either viva voce or by affidavit, and if the judge is of the opinion that the purchaser is entitled to the possession of the land, as against the person named in the summons, and that such persons are withholding the possession of the land, the judge shall make an order directing a writ of possession to issue out of the court, and may in such order direct that such writ be issued only after a certain number of days, to be fixed by the judge. [ 34 ] As Norbridge is claiming a one-half interest in the property by virtue of a Sheriff ’ s deed, Sections 13 and 14 are also relevant.

They provide: 13 The sheriff shall execute to the highest bidder, or his nominee, a deed of land so sold, which shall be sufficient to convey to the purchaser named in the deed all of the interest of the judgment debtor in such land bound by the judgment, free from the judgment for which the land was sold and any lien or encumbrance recorded subsequent to it. 14 A deed executed by a sheriff, and purporting to convey land sold under execution, is prima facie evidence of the proceedings referred to therein, that the requirements of this Act were duly complied with and that the interest of the debtor bound by the judgment against the debtor had been conveyed by such deed to the purchaser, free from the judgment for which the land was sold and any lien or encumbrance recorded subsequent to it. [ 35 ] There is, it would seem, no reported decisions within this jurisdiction which directly address what process is to be followed when considering sections 18 and 20 above, and the nature of the burden carried by an applicant and respondent respectively.

In Re Whitman , [1994] N.S.J. No. 127 , while dealing with an application for a writ of possession, Haliburton, J. addressed irregularities in a sale process, and the effect of

section 14. The Court ’ s comments with respect to that section, in particular the prima facie validity of a Sheriff ’ s deed, are helpful: 5. It seems apparent that the provision places some onus on the judgment debtor who seeks to have set aside the validity or seeks to have the deed set aside or have it declared to be invalid but I do not consider that it imposes a very great burden on the judgment debtor.

It seems to me that provision is primarily intended to provide assurance to third parties or people down the line from the original purchaser at the sale, so that there would not be a need to apply under the Vendors and Purchasers Act or something like that to establish that the sale was, in fact, valid and that it did, in fact, convey the interest of the debtor as it purported to do. 6.

In any event, the use of the words “ prima facie ” indicates that it, that such a deed can clearly be set aside on the basis of any established irregularity in the proceedings. [ 36 ] The Court then proceeded to determine whether there was an irregularity with the sale, and after determining that there was not, proceeded to issue the writ of possession as requested. [ 37 ] There is also some limited academic comment regarding the effect of a Sheriff ’ s deed. C.W.

MacIntosh, Q.C., in “ Nova Scotia Real Property Practice Manual ” , LexisNexis Canada Inc. 1988 (looseleaf), states at Paragraph 5.1E, as follows: “ When the Sheriff sells land pursuant to the provisions of the Sale of Land Under Execution Act , his deed conveys the right or interest of the judgment debtor in the land being sold. The Sheriff ’ s deed conveys no more nor less than the debtor ’ s interest in the land. The deed does not convey the land itself, but only the interest of the judgment debtor in the land.

The Court does not have authority to order that the deed convey not only the debtor ’ s interest in the land, but make the conveyance free and clear from other interests. The Court does have a duty, however, to protect potential purchasers at the sale and will direct that notice be given to the nature of the interest being sold.

And further at Paragraph 11.2B.3: “ A sheriff ’ s deed conveys only the interest of the debtor bound by the judgment. It does not clear the title with respect to previous flaws, but it does extinguish other judgments. A sale appears to extinguish rights of a non-owning spouse under the Matrimonial Property Act, but is subject to overriding interests such as taxes and betterment charges. The certificate in proof of execution should be carefully checked. ” Determination [ 38 ] The wording of

Section 18 of the Act is determinative of the nature of the burden in this application. Although the burden normally rests with an applicant, the provision requiring a judgment debtor or other person in possession of a property “ to show cause why a writ of possession should not issue ” is key. Once an applicant establishes that they possess a Sheriff ’ s deed, the burden then rests with the respondent to establish by way of evidence, that they have some entitlement to remain in possession. [ 39 ] Mr.

Lienaux has risen to that challenge, and despite the extensive arguments made before the Court, his position is quite simple. He asserts he still owns an undivided one-half interest in the property which was never subject to the Campbell judgment, and could not therefore, be properly subject to the Sheriff ’ s sale. In my view, if Mr. Lienaux is correct in his assertion that he retains an interest in the property, such would be an effective bar against the writ of possession sought by Norbridge. [ 40 ] Mr.

Lienaux argues the decision of Justice Warner establishes that he retains this interest by virtue of the 1992 Marriage Contract, and that the February 2010 deed did not convey his original interest back to him, but rather conveyed his wife ’ s one-half interest. It is asserted that Justice Rosinski confirmed this decision and outcome. [ 41 ] The primary issue therefore, is, does Mr. Lienaux retain a one-half interest in the property as he asserts? [ 42 ] Prior to addressing that question, the Court will address Norbridge ’ s position that Mr.

Lienaux ’ s arguments in this matter should be considered to be res judicata , or alternately, an abuse of process. Although it is acknowledged that many of Mr. Lienaux ’ s assertions are similar or variations on arguments presented in prior related proceedings, I prefer to deal with this matter on its merits. Additionally, the proper

interpretation of the Warner and Rosinski decisions is a novel issue, and one which will be determinative of the outcome of this matter. [ 43 ] The documentary evidence discloses a series of conveyances relating to the property, most notably deeds between Mr. Lienaux and his spouse. One

interpretation, on the face of the documents, is that the property, originally conveyed to the couple as joint tenants upon purchase, was placed in Ms. Turner-Lienaux ’ s name solely in April of 1992. The Marriage Contract, signed contemporaneously, served to acknowledge that Mr. Lienaux ’ s original half interest in the property was being held by his wife in trust. When she executed the deed to Mr. Lienaux and herself in February 2010, Ms. Turner-Lienaux intended to convey back to her husband his original half- interest, while retaining her own. If this view is accepted, then Mr.

Lienaux no longer holds any interest pursuant to the Marriage Contract, and his original half-interest was re-conveyed to him, subject to the earlier recorded Campbell judgment. [ 44 ] Mr. Lienaux asserts that the above view is not consistent with the findings of Justices Warner and Rosinski. I have reviewed the transcript of the representations made before both justices, the Warner oral decision, and the written decision of Justice Rosinski.

I cannot accept that Justice Warner ’ s decision, and that of Justice Rosinski, based upon the context of what was being argued before the court, stand for the proposition put forward by Mr. Lienaux. Specifically, I reject that Justice Warner determined that the February 2010 deed served to convey to Mr. Lienaux as a joint tenant, only his wife ’ s half interest in the property. [ 45 ] Such an

interpretation is simply not reasonable, and is contrary to the documentary evidence before the Court. No evidence was presented on behalf of Ms. Turner-Lienaux to speak to her intention in terms of the February 2010 conveyance, or her belief as to

what she was conveying at that time. What is before the court is her Assignment in Bankruptcy and Statement of Affairs, signed by her in October 2010. There, she asserts that she owns a one-half interest in the property. There is no mention that Mr. Lienaux is entitled to half of this half by virtue of the February deed, or that she holds another half of the property in trust for him by virtue of a marriage contract. [ 46 ] Ms. Turner-Lienaux has presented no evidence to “ show cause ” why a writ of possession should not issue against her. Mr.

Lienaux through his evidence and submissions has failed to “ show cause ” that a writ of possession should not be issued as against him. [ 47 ] Before concluding, I will address the serious allegations of fraud levied against Mr. Parish and members of his law firm by Mr. Lienaux. These allegations were founded upon Mr. Lienaux ’ s inaccurate

interpretation of Justice Warner ’ s decision, and as such, they have no merit. Considerable time and effort were spent in making these allegations, including submitting that various professional standards were breached. Many of Mr. Lienaux ’ s assertions amounted to opinion as to the proper standards to be undertaken in relation to the registration of property interests under the Land Registration Act , and as such he would have been well advised to seek out the opinion of an independent expert. Perhaps his unwarranted attack on Mr.

Parish may have been tempered if he had chosen such an avenue. [ 48 ] I am satisfied that the Applicant, Norbridge, is entitled, as against both named Respondents to a writ of possession, to be executed no sooner than October 12, 2012. [ 49 ] If the parties are unable to agree with respect to the costs of this proceeding, written submissions shall be submitted no later than October 31, 2012. J.